In order to legally construct the intermodal facility, FD & P applied to the Corps for a permit under Section 404 of the Clean Water Act ("CWA") on December 18, 1992. Nearly seven years of negotiations between FD & P and the Corps followed, during which various proposals for mitigation of the losses of wetlands caused by FD & P's project were considered and rejected by both sides. FD & P filed this action on July 23, 1999, and filed an amended complaint on July 26, 2000. FD & P now seeks summary judgment on Count II of its amended complaint, alleging that the Corps lacks jurisdiction over the wetlands in question.

II. Jurisdiction Under the
Clean Water Act

The issue presented to the court in this case is straightforward: does the CWA confer jurisdiction over wetlands abutting a non-navigable tributary, which feeds into a navigable body of water?

Section 404(a) of the CWA, 86 Stat. 884, as amended, 33 U.S.C. § 1344(a), regulates the discharge of dredged or fill material into "navigable waters." Under the statute, the Corps may issue permits "for the discharge of dredged or fill material into the navigable waters at specified disposal sites." 33 U.S.C. § 1344(a) (2002). The statute defines the term "navigable waters" as "the waters of the United States, including the territorial seas." 33 U.S.C. § 1362(7) (2002).

The Corps has promulgated the following regulations to interpret these provisions of the CWA:

(a) The term `waters of the United States' means

(1) All waters which are currently used, or were used
in the past, or may be susceptible to use in
interstate or foreign commerce, including all waters
which are subject to the ebb and flow of the tide;

(2) All interstate waters including interstate
wetlands;

(3) All other waters such as intrastate lakes,
rivers, streams (including intermittent streams),
mudflats, sandflats, wetlands, sloughs, prairie
potholes, wet meadows, playa lakes, or natural ponds,
the use, degradation or destruction of which could
affect interstate or foreign commerce including any
such waters:

(i) Which are or could be used by interstate or
foreign travelers for recreational or other purposes;
or

(ii) From which fish or shellfish are or could be
taken and sold in interstate or foreign commerce; or

(iii) Which are used or could be used for industrial
purpose by industries in interstate commerce;

(4) All impoundments of waters otherwise defined as
waters of the United States under the definition;

(5) Tributaries of waters identified in paragraphs
(a)(1)-(4) of this section;

(6) The territorial seas;

(7) Wetlands adjacent to waters (other than waters
that are themselves wetlands) identified in
paragraphs (a)(1)-(6) of this section.

Congress chose to define the waters covered by the
Act broadly. Although the Act prohibits discharges
into `navigable waters,'. . . the Act's definition of
`navigable waters' as `the waters of the United
States' makes it clear that the term `navigable' as
used in the Act is of limited import. In adopting
this definition of `navigable waters,' Congress
evidently intended to repudiate limits that had been
placed on federal regulation by earlier water
pollution control statutes and to exercise its powers
under the Commerce Clause to regulate at least some
waters that would not be deemed `navigable' under the
classical understanding of that term. (internal
citations omitted) . . . [T]he evident breadth of
congressional concern for protection of water quality
and aquatic ecosystems suggests that it is reasonable
for the Corps to interpret the term `waters' to
encompass wetlands adjacent to waters as more
conventionally defined.

474 U.S. at 133, 106 S.Ct. 455.

Therefore, the Riverside Bayview court concluded that, given "the inherent difficulties of defining precise bounds to regulable waters," wetlands which are not themselves navigable bodies of water may nonetheless be regulated under the CWA when they are adjacent to navigable waters. 474 U.S. at 133, 106 S.Ct. 455. It is important to note that the Court in Riverside Bayview explicitly declined to extend its holding to cases involving wetlands adjacent to non-navigable waters. See id. ("[w]e are not called upon to address the question of the authority of the Corps to regulate discharges of fill material into wetlands that are not adjacent to bodies of open water . . . and we do not express any opinion on that question.").

Until recently, therefore, the law on this issue was relatively clear. The Supreme Court's decision in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001), however, has limited the scope of the CWA. Solid Waste involved several ponds that had formed in pits that were originally part of a sand and gravel mining operation. Although the ponds were completely isolated from any navigable waters and the entire area in question was within the state of Illinois, the government argued that it had jurisdiction over the area under an Army Corps of Engineers regulation known as the "Migratory Bird Rule." See id. at 163, 121 S.Ct. 675. The Migratory Bird Rule states that § 404(a) of the CWA extends to intrastate waters "[w]hich are or would be used as habitat by other migratory birds which cross state lines." Id. at 164, 121 S.Ct. 675 (quoting 51 Fed. Reg. 41217).

The Supreme Court held that federal regulation of the waters at issue in Solid Waste under the Migratory Bird Rule exceeded the authority granted to the Corps under the CWA. In reaching this conclusion, the Court did not overturn Riverside Bayview, but instead reasoned as follows:

It was the significant nexus between the wetlands and
`navigable waters' that informed our reading of the
CWA in Riverside Bayview Homes. In order to rule for
[the government], we would have to hold that the
jurisdiction of the Corps extends to ponds that are
not adjacent to open water. But we conclude that the
text of the statute will not allow this.

In analyzing the meaning of "navigable waters" under the CWA, the Court acknowledged its prior holding that "the word `navigable' in the statute was of `limited import' ". Id. at 682-683 (quoting Riverside Bayview, 474 U.S. 121 at 133, 106 S.Ct. 455, 88 L.Ed.2d 419). Nevertheless, the Court concluded that "it is one thing to give a word limited effect and quite another to give it no effect whatever. The term `navigable' has at least the import of showing us what Congress had in mind as its authority for enacting the CWA: its traditional jurisdiction over waters that were or had been navigable in fact or which could reasonably be so made." Id. at 683.

In the wake of Solid Waste, courts have struggled with evaluating the jurisdictional reach of § 404(a) of the CWA. Because the Third Circuit has not yet spoken on this issue, this court must look to other federal jurisdictions for guidance. Courts interpreting the scope of Solid Waste have essentially split into two camps. Under one reading, the Solid Waste case represents a significant shift in the Court's CWA jurisprudence, calling into question the continuing validity of CWA jurisdiction over waters which are not either actually navigable or directly adjacent to navigable waters. On the other hand, an alternative reading of Solid Waste holds that the case applied only to "isolated waters," and thus would permit continued CWA jurisdiction over all waters which have at least a minimal hydrological connection to navigable waters. The Corps argues that the latter view is the correct interpretation of Solid Waste, while FD & P urges this court to adopt the former view.

It is worth noting that the majority opinion in Solid
Waste repeatedly refers to the wetlands at issue in
that case as `isolated,' despite the fact that, as
the dissent points out, even the most seemingly
`isolated' wetlands are in fact both hydrologically
connected, as well as ecologically connected, to
navigable waters. (internal citations omitted). The
dissent notes that the wetlands in Solid Waste are at
least ecologically connected . . . Despite this, the
majority still refers to the wetlands as isolated,
indicating what is likely a significant shift in its
CWA jurisprudence. This leads the Court to conclude
that even if there is a hydrological connection,
Defendant's wetlands may be considered `isolated' for
purposes of the CWA.

Id. at 1014 n. 3.

Judge Zatkoff noted that the basic principles articulated in Riverside Bayview remain good law: "[b]ecause the goal of the CWA is to curtail water pollution . . . federal jurisdiction must encompass some non-navigable water." Id. at 1016. Where, for example, toxic chemicals are discharged into wetlands adjacent to navigable waters, "that chemical would undoubtedly affect the navigable body of water," and therefore CWA jurisdiction over these hypothetical wetlands would be appropriate. Id. Nonetheless, under the jurisdictional limits articulated in Solid Waste, Judge Zatkoff concluded that the CWA did not confer jurisdiction over wetlands which were merely adjacent to nonnavigable tributaries of navigable waters. A number of courts have reached similar conclusions. See, e.g., U.S. v. RGM Corp., 222 F. Supp.2d 780 (E.D.Va. 2002), (holding that the CWA does not confer jurisdiction over wetlands adjacent to ephemeral ditches and streams which only occasionally flow into navigable waters).

Leading the other side of the debate, the Ninth Circuit adopted a reading of Solid Waste which would leave the scope of CWA jurisdiction unaltered. In Headwaters, Inc. v. Talent Irrigation District, 243 F.3d 526 (9th Cir. 2001), the defendant was applying herbicide to nonnavigable irrigation canals which flowed into tributaries of navigable waters. The Ninth Circuit distinguished Solid Waste, noting that the waters at issue in that case were "isolated waters." The irrigation canals in Headwaters, by contrast, "receive water from natural streams and lakes, and divert water to streams and creeks," and therefore "it is incontestable that substantial pollution of one not only may but very probably will affect the other." 243 F.3d at 533-34 (quoting United States v. Ashland Oil and Transp. Co., 504 F.2d 1317, 1329 (6th Cir. 1974)). In analyzing the CWA and the Corps' regulations, the court concluded that non-navigable tributaries of navigable waters are "waters of the United States," and therefore are equivalent to navigable waters for purposes of the CWA jurisdictional analysis. The court cited to several pre-Solid Waste cases holding that the CWA confers jurisdiction on nonnavigable waters flowing into non-navigable tributaries of navigable waters. Id. at 533 (citing, e.g., United States v. TGR Corp., 171 F.3d 762 (2d. Cir. 1999)). Thus, the Ninth Circuit concluded that Solid Waste applied only to isolated waters with no hydrological connection to navigable waters. Headwaters, 243 F.3d at 533-34.

Similarly, in United States v. Interstate General Co., 152 F. Supp.2d 843 (D.Md. 2001), the court refused to overturn a defendant's conviction for unlawfully filling wetlands which were adjacent to non-navigable tributaries of navigable waters. The court reasoned that "[b]ecause the Supreme Court only reviewed 33 C.F.R. § 328.3(a)(3), it would be improper for this Court to extend the Solid Waste court's ruling any further than they clearly intended." Id. at 847. Finally, in United States v. Lamplight Equestrian Center, Inc., 2002 WL 360652 (N.D.Ill. 2002), the court began its analysis by noting that, in light of Solid Waste, "the critical issue" in assessing CWA jurisdiction "is whether there is a significant nexus" between the wetlands at issue and navigable waters. Id. at *6. In analyzing this question, the court held that "a tributary need not have a direct connection to the navigable water, but may be linked through other connections two or three times removed from the navigable water and still be subject to the Corps' jurisdiction." Id. at *8.

In the context of analyzing the two divergent views outlined above, it is helpful to review the origins and purposes of the CWA. Congress passed the CWA for the stated purpose of "restor[ing] and maintain[ing] the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a) (2002). The CWA was the culmination of a series of legislative measures passed in response to the problem of heavily polluted waters throughout the country, typified by a 1969 fire on the Cuyahoga River in Cleveland caused by a slick of industrial waste. Solid Waste, 531 U.S. 159, 174-75, 121 S.Ct. 675, 148 L.Ed.2d 576 (Stevens, J., dissenting). Congress passed the legislation with the goal of ending water pollution in this nation altogether by 1985. While that goal has not yet been reached, case law prior to Solid Waste provided the government with wide latitude in utilizing the CWA to halt pollution.

Nevertheless, we are obligated to read the CWA in light of the Supreme Court's most recent interpretation of that statute. This court believes that Solid Waste represents a clear statement from the Supreme Court on the scope of CWA jurisdiction. Therefore, the framework which the Court has established must be faithfully followed in accordance with the well-known doctrine of stare decisis. In light of Solid Waste, it is the view of this court that the "hydrological connection" test is no longer the valid mode of analysis. In this context, the language of Chief Justice Rehnquist's opinion is instructive: it is "the significant nexus between the wetlands and `navigable waters'" that must inform our reading of the CWA. 531 U.S. at 168, 121 S.Ct. 675. Because, as Justice Stevens points out, Solid Waste has substantially altered the meaning of "navigable waters" in the CWA, a "significant nexus" must constitute more than a mere "hydrological connection."*fn3 Therefore, this court must reject the Corps' reading of Solid Waste, which this court believes would essentially ignore the Supreme Court's instructions and maintain the "hydrological connection" status quo.*fn4

For the foregoing reasons, on this 15th day of January, 2003, it is hereby ORDERED that FD & P's Motion for Summary Judgment is DENIED.

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